OSI enforcement? (Was Re: Microsoft use of the term "Open Source")

Philippe Verdy verdy_p at wanadoo.fr
Sun Jan 6 01:38:58 UTC 2008

Rick Moen [mailto:rick at linuxmafia.com] wrote:
> Above, Philippe asserts that OSI could not be correctly asserted to own
> an "open source" trademark (and no, capital letters are _not_ required)
> without "registration", e.g., with USPTO.  Sorry, wrong.

Possibly for the USA only, but such tolerance in US does not mean that the
trademark gets any protection elsewhere. Other countries will REQUIRE this
registration. Otherwise the US would constantly steal trademarks used and
registered elsewhere.

Ad we are speaking about an international recognition of open source
licences, your too limited on US only is probably the wrong way to go. What
US tolerates on its soil is untolerable in other countries, so even if this
trademark is considered valid in US, it remains limited in scope and area of

Trademark registration is effectively needed for international protection,
without it, the trademark simply does not exist elsewhere, and all those
authors that have used (and continue to use "open source" outside US are
fully right to use it as they will, and it may even happen that they gain
trademark protection in other countries, if they can register it there, so
the tolerance in US will become mostly void under international agreement,
because it won't be enforceable against an internationally approved
registered trademark, and US won't be able to forbid products using that
registered trademark from being imported legally in US).

Just remember that open source programs are international by nature (as
required in their licences), so they need international protection on solid
bases such as those covered by the international treaties about copyright
and trademark (as defined and managed now within WIPO, including the old
Convention of Bern whose scope falls now within its competence).

The fact you may don't like the WIPO (notably its name that is denounced by
open source supporters and free software supporters) is not relevant,
because both need and highly depend on the protection of their licences by
copyright laws.

I'm as much informed on this subject as you, when you are just considering
the very limited US-only legal field. US is not the world, and international
treaties will prevail in many cases to every national US laws, as soon as US
becomes a signatory party to these treaties.

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